Finch v. Covil Corp.

• Decision Date: 01 May 2019
• Docket Number: 1:16-CV-1077
• Citation: 388 F.Supp.3d 593
• Parties: Ann FINCH, Individually, and as Executrix of the Estate of Franklin Delenor Finch, Plaintiff, v. COVIL CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of North Carolina

388 F.Supp.3d 593

Ann FINCH, Individually, and as Executrix of the Estate of Franklin Delenor Finch, Plaintiff,

v.COVIL CORPORATION, Defendant.

1:16-CV-1077

United States District Court, M.D. North Carolina.

Signed May 1, 2019

Sabrina G. Stone, Benjamin D. Braly, Charles W. Branham, III, Jessica M. Dean, Jonathan M. Holder, Kevin W. Paul, Lisa W. Shirley, William Marc Graham, Dean Omar & Branham LLP, Dallas, TX, for Plaintiff.

James M. Dedman, IV, Gallivan White & Boyd, P.A., Charlotte, NC, Keith E. Coltrain, William W. Silverman, Wall Templeton & Haldrup, P.A., Robin A. Seelbach, Yates, Mclamb & Weyher, LLP, Raleigh, NC, Mark H. Wall, Elmore & Wall, P.A., Charleston, SC, Allyson R. Twilley, Daniel B. White, Theodore D. Rheney, Ronald G. Tate, Jr., Gallivan, White & Boyd, PA, Stephanie G. Flynn, Fox Rothschild LLP, Greenville, SC, for Defendant.

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge

Ann Finch sued Covil Corporation and others for the wrongful death of her late husband, Franklin Finch, who died from mesothelioma

caused by exposure to asbestos. She resolved or dismissed her claims against all defendants but Covil, and the case was tried from October 1 through October 5, 2018. The Court charged the jury on North Carolina state law negligence and failure to warn claims. The jury found Covil liable on both counts and returned an award of $32.7 million in damages.

Covil asks the Court to set aside the jury verdict and grant it judgment as a matter of law, contending the plaintiff failed to present evidence sufficient to support the verdict on liability. In the alternative, Covil asks for a new trial based on the "cumulative effect" of purportedly erroneous evidentiary rulings and jury instructions, improper arguments by plaintiff's counsel to the jury, and the excessiveness of the jury's verdict. To the extent the Court denies its motion for a new trial on damages, Covil seeks remittitur.

The plaintiff presented a persuasive case on liability, proffering extensive direct and circumstantial evidence that Covil sold asbestos-containing products to the Firestone tire factory where Mr. Finch worked, at a time when it knew or should have known the products were dangerous to human health; that Covil did not provide pre- or post-sale warnings on or about its asbestos products; and that exposure to asbestos products sold by Covil was a proximate cause of Mr. Finch's fatal mesothelioma

.

Covil's arguments about insufficiency of the evidence ignore evidence favorable to the plaintiff, and its assertions about evidentiary rulings mischaracterize the record. It contends the jury instructions failed to address the frequency, regularity, and proximity of Mr. Finch's exposure to Covil's asbestos, but the instructions covered those factors as tailored to the evidence at trial. The plaintiff's closing arguments were grounded in the evidence, relevant, and not unfairly prejudicial, and nothing suggests that the jury's decision on liability was based on improper factors rather than a rational assessment of the strength of the plaintiff's evidence and the weakness of Covil's defense.¹ There is no reason to set aside the verdict on liability or to give Covil another bite of the apple.

As to damages, the plaintiff presented an equally compelling case. Her evidence was uncontroverted that mesothelioma

is incurable and is one of the most painful forms of cancer ; that after his diagnosis, Mr. Finch experienced eight months of debilitating pain, suffering, and embarrassment; and that Mr. Finch went through hospitalizations, surgeries, complications, a colostomy, and time in a nursing home before he died. Covil made no effort to undermine the plaintiff's evidence of the close relationships between Mr. Finch and his family, and the jury had plenary evidence to conclude that the loss of companionship to Mr. Finch's wife and adult children had substantial value.

Though Covil did not emerge from this trial looking like a model corporate citizen and plaintiff's counsel did not pull any punches in her arguments that Covil should be held responsible for the harm caused by its negligence, the law does not require a plaintiff with the burden of proof to downplay the strength of her evidence or to sugarcoat the conduct of the defendant. The plaintiff's arguments were supported by the evidence, and Covil had a full and fair opportunity to challenge those arguments on the merits. The fact that Covil lost and the jury returned a large verdict is explained by the evidence, not by passion or prejudice.

The Court declines to substitute its judgment about an appropriate amount of damages for Mr. Finch's pain and suffering and the value of his companionship to his widow and three adult children for the reasoned judgment of the jury, as reflected in their unanimous verdict. Covil's motions will be denied.

I. Background

Firestone built a tire manufacturing plant in Wilson, North Carolina, from 1973 to 1974. PTX 13 at 566-1; Doc. 499 at 124:7–10. Mr. Finch worked in the plant from 1975 until 1995, nearly all of which time he spent as a mold changer in the curing room. Doc. 497 at 131:4–132:4. On a daily basis, Mr. Finch worked on and around the tire presses in the curing room and the insulated steam pipes leading to and from the presses.² Id. at 140:14–150:23; Doc. 498 at 10:9–14:24, 144:14–146:16; Doc. 499 at 13:22–14:1

It was undisputed at trial that Covil sold virtually all of the insulation, including pipe insulation, used during construction of the Firestone plant, Doc. 499 at 124:7–10, 125:7–18; PTX 13 at 566-6, and Covil's Rule 30(b)(6) witness,³ James Covil, testified via deposition that at least some of this insulation contained asbestos. Doc. 499 at 110:13–17, 126:17–127:4. In 1975, the EPA banned installation of asbestos-containing pipe insulation, so that any insulation installed or replaced after that date would not likely have contained asbestos. Doc. 498 at 126:13–127:7, 155:13–21. Over 7,000 feet of asbestos-containing pipe insulation remained in the plant 15 years after construction, when it was removed during an abatement project. Id. at 156:10–14; PTX 5.

Covil did not produce any sales records showing how much, if any, of the pipe insulation it sold to Firestone was asbestos-free, contending the records were destroyed in a fire at its warehouse in 1973. Doc. 499 at 117:4–16. However, records obtained from Firestone included one 1974 invoice from Covil for 711 feet of "Thermobestos," PTX 4, an asbestos-containing pipe insulation product.⁴ A Firestone receipt showed other insulation supplied by Covil––which the jury could have concluded contained asbestos⁵ ––was earmarked for use in the "curing area" where Mr. Finch worked. PTX 21 at 593.

Mr. Finch was healthy when he retired in 1996, and he ran a small lawn care business for many years thereafter. Doc. 498 at 193:11–194:15, 198: 7–11. He had three adult children who lived nearby, and he was actively present in their lives. Doc. 497 at 128:24–129:21. After his first wife died in 2009, Doc. 500 at 32:13–18, Mr. Finch remarried the plaintiff here, Ann Finch, in 2013, Doc. 497 at 128:1–4, and the evidence is undisputed that he was a loving and caring husband. See, e.g. , Doc. 500 at 40:24–41:3, 45:11-14. He was 78 years old when he was diagnosed with mesothelioma

, and Mr. Finch was "unusually healthy" for his age up to that point. Doc. 498 at 157:20–25.

Mesothelioma

is a cancer that starts out in the layer of cells lining the lung or abdomen, id. at 93:18–94:1, 97:1–18, 100:20–101:12, and there is no dispute the disease is caused by inhaling asbestos fibers, which over time can result in cancerous tumors. See, e.g. , Doc. 499 at 33:4–15, 50:24–51:10, 59:20–62:17. This process typically takes several decades, meaning a tumor does not develop until many years after a person is exposed. Id. at 50:18–23, 59:20–24, 63:5–15.

Mesothelioma

is one of the most painful cancers because of the number of nerve endings in the lining around the lungs, Doc. 498 at 98:2–17, and there is no cure for the disease. Id. at 83:3–8. Mr. Finch died approximately 10 months after his diagnosis. Id. at 35:3–12, 165:5–6.

The Court will address other facts as needed.

II. Covil's Motion for Judgment as a Matter of Law under Rule 50(b)

Covil asks the Court to set aside the jury's verdict and enter judgment as a matter of law in its favor. Covil makes three arguments in support of its request. First, Covil contends Ms. Finch "failed to produce evidence that asbestos-containing pipe insulation provided by Covil was actually present in the Firestone plant." Doc. 505 at 5. Second, Covil asserts there was insufficient evidence that Mr. Finch was exposed to asbestos-containing products supplied by Covil, or of the "actual amount" of his exposure. Id. at 6–7. Finally, Covil maintains the evidence at trial shows that "any insulation products supplied by Covil that contained asbestos would have contained a warning as mandated by law," and that "there was no evidence presented that an alternate warning would have had any effect." Id. at 5.

After the jury has returned a verdict for the plaintiff, a court may only grant judgment as a matter of law for the defendant "if, viewing the evidence in a light most favorable to the [plaintiff] (and in support of the jury's verdict) and drawing every legitimate inference in that party's favor, the only conclusion a reasonable jury could have reached is one in favor of the moving party." Int'l Ground Transp. , 475 F.3d at 218–19.⁶ Here, Covil's assertions go to the strength of the evidence, not its sufficiency. Those contentions were rejected by the jury, and judgment as matter of law is not appropriate. See Cline , 144 F.3d 294, 301 (4th Cir. 1998) (noting that, unlike a motion for a new trial, it is not proper to weigh the evidence in resolving a motion for judgment as a matter of law, and the inquiry is limited to assessing legal sufficiency).

A. Presence of Asbestos Provided by Covil in...